Providing references is one area of employment law that is often misunderstood and fear of litigation means some employers are now reluctant to do anything apart from confirm a few scant details such as start date and job title.
nThe first question often asked by employers is whether they have to provide a reference.
nGenerally, there is no legal obligation on employers to provide references but there are some exceptions, such as those covered by financial institutions or where refusal is because the individual has brought a sex discrimination claim against the employer or where it is an established practice or where there is a term in the contract.
nCan you give a bad reference?
nThere is a widespread misconception that you cannot give a bad reference.
nReferences should be fair, accurate, non-discriminatory and based on fact or information which can be verified. An employer has a duty to exercise reasonable skill and care to ensure that the information relayed is correct. If it does not contain correct information which, for example, results in a job not being offered and this would have been offered if the correct facts had been given, the reference subject may have a case against the writer for damages.
nOne aspect of fairness is that the employee should have had the opportunity to comment on complaints contained within the reference and failure to do this could be a breach of the implied term of mutual trust and confidence.
nReferences may ask about absence levels, such as number of days off within a certain period of time, and when dealing with such requests an employer needs to be careful. Information relating to sickness/medical records is classed as sensitive personal data under the Data Protection Act and needs an individual’s consent to process this. Giving an absence figure on its own without any explanation can give the wrong impression so employers should discuss this with the employee to get their consent to process this information and agree what information can be provided.
nEmployers also need to bear in mind that they have a duty towards the prospective employer as well and ignoring important information in a reference could lead to problems.
nCan an employee see their reference?
nEmployees are not automatically entitled to see references which have been given by their employer. The difficulty is that the employee knows who their referees are and if a job offer is withdrawn then the employee naturally makes the assumption that one or more referees have made some detrimental comments.
nReferences are covered by the Data Protection Act which states that references given for the purpose of employment are exempt if the employee makes a Subject Access Request to their employer. The employee could, however, make a request to the new employer and disclosure may be required.
nReferences are obviously a complex area and employers should have clear rules within their organisation setting out their position with regard to references and who is authorised to issue them.
nIf you would like further information or support for your business please contact Sheila Watson on 01429 857082 or sheila.watson@hartlepool.gov.uk